In this case, we must consider whether the pattern jury instruction on comparative negligence is an accurate statement of the law. According to the pattern instruction, if the jury determines that the plaintiff was negligent and that his negligence, although less than that of the defendant, contributed to the injury for which he seeks damages, the jury must “reduce the amount of damages otherwise awarded to the plaintiff in proportion to the negligence of the plaintiff compared with that of the defendant.” Suggested Pattern Jury Instructions, Vol. I: Civil Cases 4th ed. § 60.141. We previously have approved this pattern instruction, see Whelan v. Moone , 242 Ga. App. 795, 796-797 2 531 SE2d 727 2000, but that was long before the current version of OCGA § 51-12-33 a was enacted as part of the Tort Reform Act of 2005. See Ga. L. 2005, p. 1, § 12. In cases of comparative negligence, OCGA § 51-12-33 a requires the jury to determine the percentage of fault borne by the plaintiff and report that percentage to the judge, but the statute assigns the task of reducing the damages award accordingly to the judge. We have cautioned before that OCGA § 51-12-33 a seems to require such a procedure,1 but it appears that the pattern jury charge on comparative negligence has not been revised to accommodate the procedure that the General Assembly adopted in 2005. Today, we conclude that the pattern instruction on comparative negligence no longer is an accurate statement of law. Zanta’vious Rush sued Courtny Clark for injuries that Rush sustained when his car collided with a van driven by Clark, and Clark defended on the ground that Rush was partly at fault for the collision. When the case was tried by a Clayton County jury, the trial court charged the jury with the pattern instruction on comparative negligence, and the court directed the jury to return its verdict on a form that, consistent with the pattern instruction, contemplates that the jury itself would reduce the damages award for any comparative negligence and did not permit the jury to specifically report the percentage of fault, if any, borne by the plaintiff. Clark timely objected to both the jury instruction and verdict form. The jury awarded $20,000 to Rush, and Clark appeals, enumerating the jury instruction and the verdict form as error. We reverse and remand for a new trial.
1. On appeal, Rush does not dispute the contention that the charge on comparative negligence and the verdict form are inconsistent with OCGA § 51-12-33 a and, therefore, erroneous, but he argues instead that there simply is no evidence from which a jury could find that he was negligent and that his negligence contributed to his injuries. If Rush is right, of course, the errors that Clark asserts with respect to the jury instructions and verdict form would be harmless, Morrow v. State , 155 Ga. App. 574 2 271 SE2d 707 1980, so we will consider first whether the evidence properly put comparative negligence in issue. We conclude that it did.
